Federico Lopez v. McDermott, Inc et al
Filing
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ORDER & REASONS that defendant McDermott, Inc.'s 108 Motion for Summary Judgment is GRANTED and plaintiffs' claims against McDermott are DISMISSED WITH PREJUDICE. Signed by Judge Eldon E. Fallon on 8/29/18. (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FEDERICO LOPEZ ET AL
CIVIL ACTION
VERSUS
NO. 17-8977
MCDERMOTT, INC ET AL
SECTION "L" (5)
ORDER & REASONS
Before the Court is Defendant McDermott, Inc.’s motion for summary judgment, R. Doc.
108. Plaintiff has failed to respond to the motion. Considering the briefs and the applicable law,
the Court issues the following Order & Reasons.
I.
BACKGROUND
In June 2017, Plaintiffs brought this lawsuit for asbestos exposure in Orleans Parish Civil
District Court. R. Doc. 1-2 at 2. In September 2017, Defendants removed the suit arguing that
Plaintiffs claims are based on Defendants’ activities on the Outer Continental Shelf. R. Doc. 1.
Plaintiff Federico Lopez alleges that he was exposed to asbestos by Defendants and contracted
malignant mesothelioma. R. Doc. 1-2 at 4. Plaintiff alleged that he was exposed to asbestos from
1971-1973 while working as a gasket cutter for Defendant Lamons Gasket Company and then
again from 1973-1986 while working for Kellogg Brown & Root as a welder/pipefitter. R. Doc.
61 at 2. Plaintiff brings strict liability/negligence claims against the Defendants as
miners/manufacturers/sellers/suppliers distributors, premises owners, contractors, or employers.
R. Doc. 61. Plaintiff Federico Lopez died on November 9, 2017 after filing this claim. R. Doc. 61
at 1. His surviving spouse, Maricela Lopez, and surviving child, Federico Lopez III, assert a
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wrongful death claim on behalf of Plaintiff Federico Lopez. R. Doc. 61 at 1. Plaintiffs also ask for
damages for medical expenses, lost earnings, pain and suffering, loss of consortium, and loss of
quality of life. R. Doc. 61 at 16.
This case was initially assigned to Judge Vance but was reassigned to Chief Judge
Engelhardt due to a conflict of interest. R. Doc. 3. In October 2017, Plaintiffs filed a motion to
remand. R. Doc. 15. In January 2018, Plaintiffs filed their first amended complaint. R. Doc. 30.
On January 24, 2018, this Court denied Plaintiffs’ motion to remand. R. Doc. 42. In May 2018,
the case was reassigned to Judge Vance because Judge Engelhardt moved to the Fifth Circuit. R.
Doc. 52. The case was immediately reassigned to Judge Morgan because of Judge Vance’s
previously stated conflict of interest. R. Doc. 53.
In June 2018, Plaintiffs filed their second amended complaint. R. Doc. 61. On July 26,
2018, the Judge Morgan was recused and the case was reassigned to Judge Fallon. R. Doc. 101.
II.
PRESENT MOTION
Defendant McDermott, Inc. (“McDermott”) has filed a motion for summary judgment. R.
Doc. 108. Defendant McDermott argues that Plaintiffs have no facts supporting that Mr. Lopez
was exposed to asbestos by their actions or on their premises. R. Doc. 108-2 at 1. Mr. Lopez
testified that he was only around McDermott employees on one project and that those employees’
activities did not generate asbestos dust. R. Doc. 108-2 at 7. Furthermore, there are no records
indicating that Mr. Lopez was ever an employee of McDermott or at a McDermott facility. R. Doc.
108-2 at 7. Accordingly, Defendant McDermott argues that Plaintiffs cannot sustain a claim
against it for exposure to asbestos. R. Doc. 108-2.
III.
LAW & ANALYSIS
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
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admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving for
summary judgment bears the initial burden of demonstrating the basis for summary judgment and
identifying those portions of the record, discovery, and any affidavits supporting the conclusion
that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden,
then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the
existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); Anderson, 477 U.S. at 249-50. In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d
1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence, review the facts and
draw any appropriate inferences based on the evidence in the light most favorable to the party
opposing summary judgment. See Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.
2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).
Here, Defendant’s motion is unopposed and the Court finds that there are no genuine issues
of material fact. By Plaintiff’s own testimony he was not exposed to asbestos at a McDermott
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facility or because of the actions of McDermott employees. Accordingly, Plaintiffs’ claims against
Defendant McDermott should be dismissed.
IV.
CONCLUSION
Accordingly,
IT IS ORDERED that Defendant McDermott’s motion for summary judgment, R. Doc. 108, is
hereby GRANTED and Plaintiffs’ claims against McDermott are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 29th day of August, 2018.
UNITED STATES DISTRICT JUDGE
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